### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-04-00156- CR

Ja so n Wr igh t a ka D ani e l Tho m as Re ic h, A ppe lla nt
v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF COM AL COUNTY , 22ND JUDICIAL DISTRI CT NO. CR2003- 196, HO NORAB LE JACK H . ROB ISO N, JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N A jury found appe llant J ason Wright guilty of ag g ravated kidnapping and ag g ravated assault. See Tex. P en. Code Ann. § 20.04 ( West 2 0 0 3 ), § 22.02 (W est Supp. 2004-05). F or ea ch offe nse, the c o u rt as s es s ed a twenty -y ear prison term and a

$10,000 fine. Wrig ht urg es that
acc omplice testimony

was not ade quately corr oborate d, his c onfrontation rig ht w as violated by the admission of testimonial hearsay , and the court err ed by failing to f ind tha t the victim was rele ased in a sa fe pla c e . We wi ll a ff

ir m th e c on vic tio ns . Wri g ht a nd his g ir lf ri e nd , Jes sic a

Cow a rt , li ve d w ithShe lby Ki ng in K ing ’s ho us e
near Cany on L ake. T heir friends J
. B. L ouden and his g irlfriend, K endra Phill ips, Eric B ehre ns and his girlf riend, Jennifer Edw ards, a nd Robert Hare, the complaining witness, lived in a nea rby house. Another friend, Trae Smit h, lived alone in a g ara g e apa rtment in the same ne ighbor hood. Har e wa sKing was not involved in the in c id e n t. T h e r e w a s te s ti mo n y th a t o n th e n ig h t i n qu estion, 1 Wright wa

rned K ing to stay

in his room no matter what he hear d. Phi lli ps ha d s pe nt t

he da y wi th h e r m oth e r, a nd

sh e wa s n ot p re se nt d

ur ingthe a ssa

ult
. 2 2 a re lative newc omer to this c ircle, and he appea rs to ha ve been tolerate d by the others beca use he ha d the only drivea ble automobile. Wright and his fr iends came to believe that Hare was stealing from them, and the y decide d to confront Ha

re at King’ s house. When Hare enter ed t he room, Cowar t acc used him of 1 taking her je w e lr

y . Wh e n H a r e d e n ie d

it , s h e s la

p p e d h im
. Wr ig h t, L o u d e n , a n d B e h r e n s then attacke d Har e, who fell to the floor and curle d up in a defe nsive position. The three men took turns hit tin g Ha

re wi th a se t of br a ss knuc kle s. Whe n no t hit tin g Ha re wi th the ir fi sts , the y

kic ke d h im. Be hrens pr oduced a

pair of ha

ndcuff s, which he a

nd Wright plac ed on Ha

re’ s wrists. The beating the n c on tin

ue d. Smith s tr

uc k H a re a

fe w t im es, fe a ri ng that Wr ig ht, L ou de n, a nd B e hr e ns wo uld
a tta c k h im i f h e did

no t take pa

rt
. The assault continued for about twenty minutes. Wright and L ouden then a nnounced their intention to kill Har e and thr ow him in the lake. They loaded Ha

re into the trunk of

his car a nd drove to Phillips’s m o t h er ’s h o u s e. Wright and L ouden told Phill ips that Hare was in the trunk. 2 She persua ded them not to hurt him further. Wright and L ouden drove back to K ing’ s house, wher e they rele ased H are from the trunk of t he car and remove d the handcuffs. Ha re e ventually

manag ed to leave the house and w alk to a conve nience store, whe re he called the police.

Be hrens, Smit h, and Phill ips were among the State’s witnesses. The court instructe d the jury that Be hrens wa s an accomplice a s a matter of law. Whether Smith and Phill ips were
acc omplices was submitted to the jury as a f act issue. I n his first point of error , Wright conte nds thatE ve n c on sti tut ion a l e r r or may be wa ive d by a fa ilur e to ob je c t. Br igg

s v . Sta te , 789 S
. W. 2d 3 918, 924 (T ex. C r im. App. 1990). 3 the testimony

of these a ccomplice witnesses was not c orrobor ated as require d by statute. See T e x. Cod e Cr im. Pr oc . A nn . a rt. 38 .14 ( Wes t 20 05 ) ( a c c omp lic e wi tne ss r ule ); Cat he yv . S tat e , 992 S.W .2d 460, 462 (Tex. Crim. App. 1999) (standar d of re view).

Appellant does not c ontend that Smith and Edwards we re a ccomplice s as a matter of law. To the e xten t that the ir te sti mony is ne c e ssa ry to s us ta in Wr ig ht’ s c on vic tio n, we mus t a ssume that the jury

found that they

wer e not ac complices. W o r th e n v . S tat e , 5 9 S. W. 3 d 8 1 7 , 8 2 1 ( T e x. Ap p. —A us tin

20 01 , n o p e t.) . In a

ny e ve nt, Ha re te sti fi e d th a t Wr ig ht, L ou de n, a nd B e hr e ns hit him , and that Wrig ht and B ehre ns handcuf fed him. The office r who responde d to Hare ’s ca ll also testified that Har e name d these thre e men as his assailants. This testimony was suff icient to connec t Wright to the assault. P h i l l i p s t es tified that when Wrig ht and L ouden showe d up at her mother’s house, Wright told her that Ha

re was in the trunk of the car . This was suffic ient to connec t Wright to the kidnapping . Point of error one is overrule d.

L ouden and Cowa

rt did not testify , but their written state ments to the police we re int ro du c e d in e vid e nc e . I n po int of e rr or tw o, Wri g ht u rg e s th a t th e a dmi ssi on

of the se state me nts violated his Six th Amendment conf rontation rig ht. S

e e Cr a wf o r d v . W ashington , 541 U.S. 36 (2004). Wrig ht objected to the state m en t s o n h ea rsay g rounds; he did not raise the confr ontation issue below. The a lleg ed er ror wa s not preser

ved for appea l. Tex. R. App. P. 33.1(a); Te x . R. Evid. 3 103(a) . Point of error two is ove rruled.4 Finally , Wright conte nds that the trial cour t erre d by failing to find that Hare was voluntarily

rele ased in a

safe place
. See Tex. Pen. Code Ann. § 20.04(d). Wrig ht had the burde n of raising this iss ue at the punishment stag e, which w as bef ore the court. Id
. No additional evidenc e was introduce d by

either pa rty at this stage of the trial. I nstead, the two sides a rg ued their r espec tive views on the prope r punishment. Wright d i d not mention safe r elea se, much less a rg ue that the evidenc e ca lled for suc h a finding , and thus did not ra ise the issue. More over, the evidenc e shows that Har e wa s re l ease d from his phy sical re straints at the ver y house whe re, le ss than one hour
ear lier, he had been sever ely beate n. His assailants wer e still present. The f ailure to find that Ha

re
was rele ased in a safe place was not c ontrary to the g reat weig ht and pre pondera nce of the evidenc e. See Mer az v . S tat e , 7 8 5 S. W. 2 d 1 4 6 , 1 5 5 ( T e x. Cr im
. A p p . 1 9 9 0 ) ( s ta n d a r d o f r e v ie w )
. Po in t of
err or three is overrule d.

The judg ments of conviction ar e af firmed.

__________________________________________ Be a Ann Smith, J ustice Be fore Chief J ustice L aw, Justi ces B . A. Smith and Pury ear Affir med Filed: Jul y

8, 2005 Do No t Pu

bli sh